Perry v. Schwarzenegger — Opinion


Generally when someone asks me what I think about something, they’re actually asking “what do libertarians think about this?”I am many people’s token libertarian friend. So I often find myself hesitating at such questions, unsure how to explain fully, especially when faced with the enormity of the task of explaining a political ideology’s opinion. As with many issues, there are varying opinions among my fellows as to how to approach the issue of gay marriage.

Many libertarians, myself included at times, have argued that the issue of gay marriage should be decided by the states. Another even more common argument (and the one I have made lately) is that marriage is not an institution that should have any state involvement whatsoever.  The general answer is that the state should make civil unions equivalent in rights and privileges as marriages, and grant those to everyone, leaving the institution of marriage up to those religious groups who feel obliged to dictate such policy.

I think, generally, libertarians will balk at the idea of the federal government disallowing bans on gay marriage, simply because that gives the federal government more power than is necessary. However, I am not sure that this caution is necessary, legally. There are LOTS and LOTS of ways I would justify federal intervention on behalf of gay people, and I do not have time to go into them all.  Here’s one way:

Assume that you believe, for a moment, that government’s purpose — in all its forms — is to protect the rights of the people. Generally, libertarians see these rights broadly as life, liberty, and property. Many American libertarians (including myself) would include the derived rights that we see in the Bill of Rights in our constitution. In addition, many scholars include freedom of contract (by way of association), among other rights. These are negative rights, meaning that the government cannot take any action that keeps you from these things. The sole beneficiary of rights is the people, and it is the rights of the people that are sovereign in any governmental interaction.

So, in that sense, we can see a great number of ways that a government action to deny homosexuals the right to marry is an egregious abridgment of their rights, both the natural right of liberty (and perhaps contract), as well as — like Judge Walker pointed out — many of their constitutional rights.  As such, libertarians are and should be vehemently opposed to governmental restrictions on marriage. I know I certainly am.

This court decision may save us from having to answer this question, but the sticky part comes in when you ask whether the federal government can and should intervene when states do not want to allow homosexuals to marry. That is a question of federalism and the nature of the power between the states. Different libertarians feel differently on the issue of federalism.

I think ultimately what we have to say, though, is that any violation of rights on the part of government — again, in any form — should be stopped. In this case, state governments attempting to legislate what kinds of contracts that consenting adults enter into is wrong, and if the federal government can effectively outlaw that, I think it should.  Though I am, admittedly, somewhat tenuous on that position.

However, when something like 45 states out of fifty still refuse to legalize gay marriage, I see that as highly unlikely.

So, what do I think? I’m cautiously happy. I won’t throw a party until the Supreme Court decision is out, but I am smiling to myself and hoping for the best.